Who decides what "distribution" means in open-source licenses?
For enterprises worried about consuming open source, here's one more reason to not worry.
I had dinner with a friend the other night. He works at a large retailer on the IT side and was telling me why he and his company are reluctant to embrace GNU General Public License (GPL)-licensed code. In sum, he didn't want to have to release source code. In my never-ending quest to foist the GPL on anyone with a pulse, I took issue with his concern.
"You're an end-user of software, not a distributor thereof. Why should you care about open source requirements relative to your source code? Open source licensing is triggered on distribution."
To this, he raised an interesting, and valid, point, and one that I had heard from a large financial services company before:
"But what about a distribution within the company to a subsidiary or some other corporate affiliate? It's an open question whether that counts as a distribution or not."
Today, however, Alfresco welcomed Jason Haislmaier of Holme Roberts & Owen LLP, a leading open-source attorney, to present to us on open-source licensing issues and how they affect the sales process. In the course of his presentation he covered interpretation issues in open source. Namely, who gets to decide what a license means and when to sue?
The copyright holder, of course, just as in traditional copyright. Open source does not change who has standing to sue.
In other words, only the copyright holder has the legal power and authority to enforce the terms of the GPL (or whatever the license may be) for its software.
So, for my retailer friend, he doesn't need to worry about how the Free Software Foundation might think about distribution as it relates to his company. He only needs to care how I, as the copyright holder, think about it. My company's contract - and I'm sure we're following industry standards here - is to permit such distributions between affiliated entities. We're reasonable people.
Of course, this doesn't apply for Linux or other community-owned projects. Why? Because copyright ownership is spread between the different contributors to the project, unless they've been assigned to a central party (which central party would then have power to interpret and sue).
I asked Jason how far the interpretation right extends. For example, could I unilaterally decide that GPLv2's distribution clause applies to distribution of a service over a network as it applies to my software?
The answer appears to be 'No.' There's too much dicta - legislative history, as it were - that cuts against such an interpretation. If I try to stretch that definition I'm no longer interpreting but rather am rewriting the license. Given that I don't really want to submit another license to the Open Source Initiative, it means I have to live with the license as it is, but I can at least soften its impact on my customers, to the extent that they're concerned.
Beauty is in the eye of the beholder, and interpretation is in the hands of the copyright holder. That gives a vendor with all or most of its copyrights a lot of power to interpret open-source licenses in ways that benefit its community...including its customers.